-
实施细则英文
【篇
一：专利法实施细则
(2010
英文版
)
】
implementing
regulations
of the patent
law of the peoples republic of china
(promulgated by decree no. 306 of the
state council of the
peoples republic
of china on june 15,2001, amended the first
time on december 28,2002 according to
the decision of the
state council on
amending the implementing regulations of the
patent law of the peoples republic of
china, and amended the
second time on
january 9,2010 according to the decision of the
state council on amending the
implementing regulations of the
patent
law of the peoples republic of china)
translated by the state intellectual
property office of the
peoples republic
of china. in case of discrepancy, the original
version in chinese shall
prevail.
chapter i general
provisions
rule 1. these
implementing regulations are formulated in
accordance with the patent law of the
peoples republic of
china (hereinafter
referred to as the patent law).
rule 2. any formalities prescribed by
the patent law and these
implementing
regulations shall be complied with in a written
form or in any other form prescribed by
the patent
administration department
under the state council.
rule 3. any document submitted in accordance with
the
provisions of the patent law and
these implementing
regulations shall be
in chinese; the standard scientific and
technical terms shall be used if there
is a prescribed one set
forth by the
state; where no generally accepted translation in
chinese can be found for a foreign name
or scientific or
technical term, the
one in the original language shall be also
indicated.
where any certificate or certifying document
submitted in
accordance with the
provisions of the patent law and these
implementing regulations is in a
foreign language, the patent
administration department under the
state council may, when
it deems
necessary, request a chinese translation of the
certificate or the certifying document
be submitted within a
specified time
limit; where the translation is not submitted
within the specified time limit, the
certificate or certifying
document
shall be deemed not to have been
submitted.
rule 4. where
any document is sent by mail to the patent
administration department under the
state council, the date of
mailing
indicated by the postmark on the envelope shall be
deemed to be the date of filing; where
the date of mailing
indicated by the
postmark on the envelope is illegible, the date
on which the patent administration
department under the state
council
receives the document shall be the date of filing,
except where the date of mailing is
proved by the party
concerned.
any
document of the patent administration department
under
the state council may be served
by mail, by personal delivery
or by
other forms. where any party concerned appoints a
patent agency, the document shall be
sent to the patent
agency; where no
patent agency is appointed, the document
shall be sent to the contacting person
named in the request.
where any document is sent by mail by the patent
administration department under the
state council, the 16th
day from the
date of mailing shall be presumed to be the date
on which the party concerned receives
the document.
where any
document is delivered personally in accordance
with the provisions of the patent
administration
department
under the state council, the date of delivery is
the
date on which the party concerned
receives the document.
where the address of any document is not clear and
it cannot
be sent by mail, the document
may be served by making an
announcement. at the expiration of one
month from the date of
the
announcement, the document shall be deemed to have
been served.
rule 5. the first day of any time limit prescribed
in the patent
law and these
implementing regulations shall not be counted
in the time limit. where the time limit
is counted by year or by
month, it
shall expire on the corresponding day of the last
month; if there is no corresponding day
in that month, the time
limit shall
expire on the last day of that month; if a time
limit
expires on an official holiday,
it shall expire on the first
working
day following that official holiday.
rule 6. where a time limit prescribed
in the patent law or these
implementing
regulations or specified by the patent
administration department under the
state council is not
observed by a
party concerned because of force majeure,
resulting in loss of his or its rights,
he or it may, within two
months from
the date on which the impediment is removed, at
the latest within two years immediately
following the expiration
of that time
limit request the patent administration department
under the state council to restore his
or its rights.
except for
circumstances prescribed in preceding paragraph,
where a time limit prescribed in the
patent law or these
implementing
regulations or specified by the patent
administration department under the
state council is not
observed by a
party concerned because of any other justified
reason, resulting in loss of his or its
rights, he or it may, within
two months
from the date of receipt of a notification from
the
patent administration department
under the state council,
request the
patent administration department under the state
council to restore his or its
rights.
where any party
concerned requests to restore his or its right
according to paragraph one or paragraph
two of this rule, he or
it shall submit
a request for restoration of his or its right,
stating the reasons, attaching, if
necessary, the relevant
certifying
documents, and go through the relevant formalities
which should have been complied with
before the loss of his
or its right.
where the party concerned requests for restoration
of his or its right according to
paragraph two of this rule, he or
it
shall pay the fee for request for restoration of
right.
where the party
concerned makes a request for an extension
of a time limit specified by the patent
administration
department under the
state council, he or it shall, before the
time limit expires, state the reasons
to the patent
administration department
under the state council and go
through
the relevant formalities.
the provisions of paragraphs one and two of this
rule shall
not be applicable to the
time limit referred to in articles
24,29,42 and 68 of the patent
law.
rule 7. where an
application for a patent relates to the
interests of national defense and is
required to be kept secret,
the
application for patent shall be filed with and
examined by
the patent department of
national defense. where an
application
for patent received by the patent administration
department under the state council
relates to the interests of
national
defense and is required to be kept secret, the
application shall be promptly forwarded
to the patent
department of national
defence to carry out the examination.
where it is found after examination by
the patent department of
national
defence there is no cause for rejection of the
application, the patent administration
department under the
state council
shall make a decision to grant the patent right
concerning national defense.
where the patent administration
department under the state
council
finds that an application for patent for invention
or
patent for utility model filed with
it relates to national security
or
other vital interests other than interests
concerning national
defense and is
required to be kept secret, it shall promptly
make a decision on handling it as an
application for secret
patent and
notify the applicant accordingly. the special
procedures for the examination and
reexamination of
application for secret
patent as well as the invalidation of
secret patent shall be provided for by
the patent administration
department
under the state council.
rule 8. the invention or utility model developed
in china as
mentioned in article 20 of
the patent law refers to an invention
or utility model of which the
substantive contents of the
technical
solution were made within the territory of
china.
where any entity or
individual intends to file an application for
patent abroad for the invention or
utility model developed in
china, it or
he shall request, by one of the following manner,
the patent administration department
under the state council
to conduct
confidentiality examination:
(1) where any entity or individual
intends to file an application
for
paten
t directly in a
foreign country or an international patent
application with a relevant foreign
organization, it or he shall
file a
request for confidentiality examination in advance
with
the patent administration
department under the state council
and
describe the related technical solution in
detail;
(2) where after
having filed an application for patent with the
patent administration department under
the state council, the
applicant
intends to file an application for patent in a
foreign
country or an international
patent application with a relevant
foreign organization, it or he shall
file the request for
confidentiality
examination with the patent administration
department under the state council
before filing of the
application for
patent in a foreign country or the international
patent application with the relevant
foreign organization.
where the applicant files an international patent
application
with the patent
administration department under the state
council, it or he shall be deemed to
have simultaneously filed
the request
for confidentiality examination.
rule 9. where the patent
administration department under the
state council receives a request filed
under rule 8 of these
implementing
regulations and finds, upon examination, that
the invention or utility model may
relate to the security or vital
interest of the state and is required
to be kept secret, it shall
promptly
issue a notification of confidentiality
examination to
the applicant. if the
applicant fails to receive the notification of
confidentiality examination within four
months from the date of
filing its or
his request, it or he may file, in respect of the
invention or utility model, an
application for patent in a foreign
country or an international patent
application with the relevant
foreign
organization.
where the
patent administration department under the state
council carries out a confidentiality
examination in accordance
with the
notification prescribed in the preceding
paragraph, it
shall promptly make a
decision on whether the invention or
utility mode is required to be kept
secret and notify the
applicant
accordingly. if the applicant fails to receive
such a
decision within six months from
the date of filing its or his
request,
it or he may file, in respect of the invention or
utility
model, an application for
patent in a foreign country or an
international patent application with
the relevant foreign
organization.
rule 10. any invention-creation that is contrary
to the laws
referred to in article 5 of
the patent law shall not
include the invention-creation merely
because the exploitation
of which is
prohibited by the laws.
rule 11. the date of filing referred to in the
patent law, except
for those referred
to in articles 28 and 42, means the priority
date where priority is
claimed.
the date of
filing referred to in these implementing
regulations,
except as otherwise
prescribed, means the date of filing
prescribed in article 28 of the patent
law.
rule 12. a service
invention-creation made by a person in
execution of the tasks of the entity to
which he belongs
referred to in article
6 of the patent law means any
invention-
creation made:
(l) in the course of performing his
own duty;
(2) in execution
of any task, other than his own duty, which
was entrusted to him by the entity to
which he belongs;
(3)
within one year from his retirement, resignation
or from
termination of his employment
or personnel relationship with
the
entity to which he previously belonged, where the
invention-creation relates to his own
duty or the other task
entrusted to him
by the entity to which he previously
belonged.
the entity to
which he belongs referred to in article 6 of the
patent law includes the entity in which
the person concerned is
a temporary
staff member. material and technical means of the
entity referred to in article 6 of the
patent law mean the entitys
money,
equipment, spare parts, raw materials or technical
materials which are not disclosed to
the public, etc.
rule 13.
inventor or creator referred to in the patent law
means
any person who makes creative
contributions to the
substantive
features of an invention-creation. any person who,
during the course of accomplishing the
invention-creation, is
responsible only
for organizational work, or who only offers
facilities for making use of material
and technical means, or
who only takes
part in other auxiliary functions, shall not be
considered as inventor or
creator.
rule 14. except
for the assignment of the patent right in
accordance with article 10 of the
patent law, where the patent
right is
transferred because of any other reason, the
person or
persons concerned shall,
accompanied by relevant certified
documents or legal papers, request the
patent administration
department under
the state council to register the change in
the owner of the patent
right.
any license
contract for exploitation of a patent which has
been concluded by the patentee with an
entity or individual
shall, within
three months from the date of entry into force of
the contract, be submitted to the
patent administration
department under
the state council for the record.
where any patent right is pledged,
both the pledger and the
pledgee shall
jointly register the contract of pledge with the
patent administration department under
the state council.
chapter
11 application for patent
rule 15. anyone who applies for a patent in
written form shall
file with the patent
administration department
under the state council application
documents in two copies.
anyone who applies for a patent in other forms as
provided
by the patent administration
department under the state
council
shall comply with the relevant
provisions.
any applicant
who appoints a patent agency for applying for a
patent, or for having other patent
matters to attend to before
the patent
administration department under the state council,
shall submit at the same time a power
of attorney indicating
the scope of the
power entrusted.
where
there are two or more applicants and no patent
agency
is appointed, unless otherwise
stated in the request, the
applicant
named first in the request shall be the
representative.
rule 16.
the request of application for patent for
invention,
utility model or design,
shall state the following:
(1) the title of the invention, utility model or
design;
(2) where the
applicant is a chinese entity or individual, its
or
his title or name, address, postal
code, the code of the
organization or
the citizen identification card number; where
the applicant is a foreigner, a foreign
enterprise or other
foreign
organization, his or its name or title, the
nationality or
the country or region in
which the applicant is registered;
(3) the name of the inventor or
creator;
(4) where the
applicant has appointed a patent agency, the
name of the appointed agency, the
agencys organizational
code and the
name, the professional certificate number and
the telephone number of the patent
agent assigned by the
agency;
(5)
where the right of priority is claimed, the filing
date on
which the applicant filed the
application the first time
(hereinafter
referred to as the earlier application), the
filing
number of the application and
the title of the authority with
which
the application was first filed;